Brown and Ors v Members of Classiciation Review

[1998] HCATrans 447

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M28 of 1998

B e t w e e n -

MICHAEL BROWN, MELITA BERNDT, BEN ROSS and VALENTINA SRPCANSKA

Applicants

and

THE MEMBERS OF THE CLASSIFICATION REVIEW BOARD OF THE OFFICE OF FILM AND LITERATURE CLASSIFICATION

Respondents

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 DECEMBER 1998, AT 11.18 AM

Copyright in the High Court of Australia

MR G.T. PAGONE, QC:   May it please the Court, I appear with my learned friend, MS W.A. HARRIS, for the appellant.  (instructed by Slater & Gordon)

MR D.M.J. BENNETT, QC, Solicitor‑General for the Commonwealth:May it please the Court, I appear with my learned friends, MR P.J. HANKS and MS R.M. DOYLE, for the respondent.  (instructed by the Australian Government Solicitor)

MR PAGONE:   The grounds on which special leave is sought may perhaps conveniently be found at page 58 of the application book where his Honour Justice French, at the bottom of the page said:

The appeal raises questions about the proper construction of the words “instruct in matters of crime” in the National Classification Code made under the Classification (Publications, Films and Computer Games) Act 1995 (Cth). It also raises questions about the extent and limits of freedom of expression and the ways in which that value is applied in a democratic society.

The latter point is a point that arises by virtue of the need to determine the content of the implied constitutional freedom of political speech.

GUMMOW J:   Let us be clear first:  how does the statutory scheme work relevantly to the imposition of any criminal liability?

MR PAGONE:   Your Honour, it works in this way – - -

GUMMOW J:   That does not come from the Commonwealth Act, itself, does it?

MR PAGONE:   No, your Honour.  It comes from a State Act.  A State Act imposes criminal penalties of one kind or another, and it pick up in the imposition of the penalties, the language used in the Commonwealth Act.  But, relevantly for this case, one of the defences that is a complete defence to the applicants in the criminal proceedings is whether the publication has received an appropriate classification under the Commonwealth regime.  So that if it has been classified appropriately under the Commonwealth regime, then in the State proceedings, when they come to be heard, the applicants can say, “It has been classified appropriately.  That is our defence and we must be acquitted”.

GUMMOW J:   So what is the section in the State Act of, is it of 1990 or 1995?

MR PAGONE:   The best spot to find it will be the 1990 Victorian Act.

GUMMOW J:   Yes.

MR PAGONE:   In section 55 of that Act ‑ ‑ ‑

GUMMOW J:   Yes, to defence.

MR PAGONE:   It is, your Honour.  Those provisions, relevantly, have been carried forward into the 1995 Victorian Act.

GUMMOW J:   How does 55 work in this case?

MR PAGONE:   Your Honour, charges have been laid – they are not these proceedings, of course – charges have been laid elsewhere and will, in due course, come to be heard.  When that trial comes along, the applicants, if they had been entitled to have the publication appropriately classified, will be able, in those proceedings, to say, “We have a complete defence”. 

GUMMOW J:   The constitutional guarantee might bite then.

MR PAGONE:   It would be difficult to see it biting then if – it may, your Honour, I do not wish to say anything that might preclude raising the argument at that point but, the question is whether the proper construction of the relevant provisions of the Code has been determined – been determined by what the Full Federal Court has said, which, if it has been determined by what the Full Federal Court has said, would perhaps bind any court hearing criminal charges.

Your Honours, in so far as one turns to the particular proceedings here, of course, as your Honours will be aware, the question was whether the Classification Board had correctly applied the law in determining how to construe the provisions which it then had to apply to the particular publication.  In short compass, the argument in the Full Federal Court was this:  that as a matter of proper construction of the Code, when the constitutional guarantee is taken into account, the words “instruct in matters of crime”, which were the operative provisions of the Code – “instruct in matters of crime” – they had to be understood as requiring two fundamental elements:  the purpose and a likelihood or a tendency to achieve that purpose.  What the Full Federal Court said was that purpose was sufficient.  It was not necessary for there also to be found a tendency.

GLEESON CJ:   Could you just explain how that issue arose on the facts of this case?

MR PAGONE:   If your Honours would turn to page 99 of the application book.  That is from the reasons for judgment of Justice Sunberg.  At page 98 his Honour outlines briefly the relevant statutory provisions, and the Act to which I have already referred your Honours has as a schedule to it, the National Classification Code, which is extracted on pages 99 to 100.

GLEESON CJ:   I may not have made myself clear.  What is it about the facts of the present case that made the question of “tendency” of importance, in addition to the question of “purpose”?

MR PAGONE:   I do need to take your Honours to that.  I was seeking to address that point.  The Code requires a refused classification category.  If it promotes, and your Honours will see at the top of page 100:

promote, incite or instruct in matters of crime or violence.

The question about this article was, does it relevantly instruct in matters of crime.  The question then becomes, your Honour, what does “instruct” mean for these purposes.

GLEESON CJ:   Yes; I understood that.  What I meant was, what was it about the facts of this publication that made the issue of “tendency” as well as “purpose” of importance?

MR PAGONE:   Because, your Honour, in our submission, the article, when properly construed, could not have that tendency.

GLEESON CJ:   And why is that?

MR PAGONE:   Because when one looks at the article one sees that, in the context in which it is published – a university environment – in the context of publication by students having been elected on a platform to publish an article such as this, and in the context of the content of the article, containing information of a kind which is fairly elementary, hiding behind passage, for example, so as not to be seen.  But, it is not as though there was a giving of any confidential or information of a kind that advances one’s ordinary commonsense conclusions that one might reach oneself.

GLEESON CJ:   You mean reading it would not have done a potential shoplifter any good?

MR PAGONE:   Yes, your Honour.

GLEESON CJ:   I understand.

MR PAGONE:   Perhaps one graphic way of seeing how the article, itself, cannot be seen to have that consequence is the fact that his Honour Justice Heerey annexed it as reasons for judgment.  The article, we would say, itself, does not of itself produce such a radical tendency as we would say is needed when the word “instruct” is properly construed as a matter of constitutional guarantee, or ordinary principles of statutory construction.

GLEESON CJ:   Where do we find that - that reference in the judgment of Justice Heerey?

MR PAGONE:   I can actually take your Honour- - -

GLEESON CJ:   Your junior can turn it up and you can come back to it.

MR PAGONE:   Your Honour, it is actually a schedule to his reasons for judgment.  The schedule is extracted at page 92 of the application book.

GLEESON CJ:   Thank you.

MR PAGONE:   I think his Honour Justice French refers to it having been a schedule to the article.

GLEESON CJ:   I thought you were referring us to a passage in the judgment of Justice Heerey.  I just wanted to read that.

MR PAGONE:   If your Honour please.  I will ask my learned junior to find the passage where his Honour refers to it.

GLEESON CJ:   Thank you.

MR PAGONE:   It is, in fact, at the very beginning, page 82.  His Honour says:

I agree that the appeal should be dismissed.  It is important that the article in question be read as a whole.  The full text of the article is set out in a schedule to these reasons.

At page 60 of the application book, in the reasons of Justice French, at about line 20, his Honour says:

the article which is the subject of these proceedings is annexed to and forms part of the reasons for judgment of Heerey J.

He then summarises it.  But what one gets from that is that the article, itself, we would say, cannot have the tendency.

GLEESON CJ:   Where did they say that?

MR PAGONE:   That it does not have the tendency?

GLEESON CJ:   Yes.  I am trying to understand the importance of this tendency issue, and I thought you put to us that Justice Heerey – I may have misunderstood you – expressed the view that it did not have the tendency but only had the purpose.

MR PAGONE:   Your Honour, the court decided the tendency was not relevant.  That is the point.  Because the court decided the tendency was not part of the proper ambit of construction then the article came within the purposive part of the elements, and their Honours found, rightly or wrongly, that that was sufficient. 

May I take the Court very briefly to what his Honour Justice Sunberg said on the constitutional question.  Your Honours will, of course, recall that so far as the constitutional guarantee is concerned, the first question is, “Does it come within the freedom?”, and secondly, if it does ‑ ‑ ‑

GUMMOW J:   The constitutional freedom denies legislative power.

MR PAGONE:   Quite so, your Honour.

GUMMOW J:   What is the section in the exercise of legislative power which is wholly or partly invalid?

MR PAGONE:   It is a section that incorporates into the Commonwealth Act and gives it force of a Code.

GUMMOW J:   What section is that?  One needs to be specific about these matters.

MR PAGONE:   Yes, your Honour, I accept that.  I think it is section 6 of the National Classification Code.

GUMMOW J:   That is the 1995 federal Act?

MR PAGONE:   The federal Act, your Honour, yes.

GUMMOW J:   The 1995 one?

MR PAGONE:   The 1995 Act, your Honour, section 9.  Your Honours will see:

Publications, films and computer games are to be classified in accordance with the Code and the classification guidelines.

Well, relevantly, we do not need to worry about the guidelines, your Honours, it is the Code.  The Code is an annexure, a schedule to that Act, and when one goes to the schedule one sees – it is page 35 of my copy of the Act, if it is the same as - - -

GUMMOW J:   Yes.

MR PAGONE:   One sees:

Classification decisions are to give effect, as far as possible, to the following principles:

The principles are set out.

GLEESON CJ:   It is paragraph (c) we are concerned with.

MR PAGONE:   Yes, your Honour.

GLEESON CJ:   So your proposition is that it is beyond the power of Parliament to provide for the classification set out in paragraph (c)?

MR PAGONE:   No, your Honour, it is our argument that the Parliament may do so provided that the word “instruct” has about it both the elements of purpose, that is to say, intention, and tendency.

GLEESON CJ:   More accurately, your argument is that it would be beyond the power of Parliament to prescribe that classification if it has the meaning that the Federal Court gave it?

MR PAGONE:   Correct, your Honour.  We say that as a matter of construction it does not have that meaning because we say that the constitutional principle should inform the construction ‑ ‑ ‑

GUMMOW J:   How does this section, if not so read down, impact upon this freedom?

MR PAGONE:   How does it impact upon the freedom, your Honour ?

GUMMOW J:   Yes.  It does not seem to me it was causative of anything in terms of legal consequence.

MR PAGONE:   It is, in effect, permissive.  It is the source that authorises the Board to classify or not to classify; and what that section does is to give it statutory authority to classify articles which come within the meaning of the word “instruct” as presently construed.

GUMMOW J:   Does it not come down to its operation on section 55 of the State Act of 1990?

MR PAGONE:   In respect of the particular prosecutions?

GUMMOW J:   Yes.

MR PAGONE:   All things being equal, of course, but when section 55 of the State Act is sought to be applied we, at the moment, do not have the defence because the classification has been denied to us.

GUMMOW J:   Are you saying you have to give the defence a wider meaning than it has in 55?

MR PAGONE:   No, your Honour, I am saying that in order for me to have the defence in those proceedings, I need this classification.  Without it, I do not have it.  The classification is a classification made pursuant to that Act authorised by that section by reference to the meaning of the words ‑ ‑ ‑

GUMMOW J:   So you are saying you should have a classification?

MR PAGONE:   Indeed, your Honour, yes.  What we do not want is the RC classification, your Honour.

GUMMOW J:   I am not sure whether are not reading this federal Act up rather than down.

MR PAGONE:   We perhaps try to read it all ways, but, your Honours, unless we get an appropriate classification other than the RC classification, our defence disappears.  That defence disappears.  Whilst I accept what your Honour says, with respect, that one has to construe the State Act as well, it would seem unusual if the State Act were not construed consistently with the construction given in the federal proceedings.  But, in any event, that is relevantly, for these people, not the point.   For the present applicants, the point is that their defence will go; that defence will go.

I was going to take your Honours to a passage in the judgment of Justice Sunberg to make the point about the constitutional construction.  His Honour, after considering what the content of the constitutional guarantee was, then turned to the question about whether it was legitimately within the Commonwealth Parliament to enact such a provision.  At page 105, at about line 23, his Honour says:

The second answer to the submission is that even if the article were prima facie to fall within the freedom, the Act as interpreted satisfies the legitimate end of protecting the community from conduct likely to be harmful.

The point is that we wholly accept the necessity to ask the question of likelihood, but neither the Classification Board nor his Honour Justice Merkel at first instance, nor the Full Federal Court considered that relevant to the determination of the article.  So that at no stage was the question answered “Yes, it is likely to be harmful”, and we would say with good reason, because it could not.

GUMMOW J:   What do you say about the passage in Justice Merkel’s judgment at 44 to 45?  I know he was doing it under the heading “Unreasonableness”, but he was, in substance, perhaps, looking at that constitutional question.  Particularly, page 44 lines 12, 13 and following, and over the page to 45.

MR PAGONE:   What we say about that is that his Honour plainly was not addressing the question of tendency of the article.  The reason for that is that his Honour was not even addressing the question of purpose of the authors or of the article.  His Honour had said below that it was sufficient to come within the word “instruct” if it conveyed information.  That was enough.  The Full Federal Court departed from that proposition.  So that his Honour could not there be regarded as considering the question about one step further from “convey information”, “purposive”, and then “tendency”, because his Honour just did not look at the article and as his Honour saw the matter, required to engage in that kind of analysis.

GUMMOW J:   No, but he was looking at the constitutional guarantee in the viewpoint of someone, as his Honour is, I think, versed in the United States jurisprudence on this question.

MR PAGONE:   But, your Honour, the question is whether the Full Federal Court has now told us something about the construction and how the constitutional freedom is to be understood, which, even if his Honour were right, has now departed from it.  I see my time is up.  If your Honours please.

GLEESON CJ:   Thank you, Mr Pagone.  Yes, Mr Solicitor.

MR BENNETT:   Your Honour, the first problem, of course, is that my learned friend’s principal argument was not put to the trial judge or to the Board, and that point is made by Justice Heerey at page 83.  It is, of course, a point which could easily have required further evidence, the question of the likely effect of the article.

May I put that aside for the moment?  The whole question which my learned friend seeks to raise is a question which arises in relation to the qualification.  The first question one has to ask before one gets to that is whether the subject matter of the article is within the scope of the freedom of political discussion, which is discussed by this Court in a number of cases.  It is noteworthy that the passage in the judgment in this Court – passages in the remarks of Justices Mason, Deane and Gaudron, in a number of the Free Speech Cases, were cited and applied by at least two, and possibly the third by inference, of the judges in the Full Court.  One sees that, for example, at page 75 in the judgment of Justice French at line 20, and at pages 87 to 88 in the judgment of Justice Heerey, where the quotation from Barendt about political speech and the reference to the judgments of Justices Mason, Toohey and Gaudron in relation to that are discussed.

So, what we are dealing with is the application of established principle.  In applying that principle, the first thing one has to do is to say, “Is this an article which is concerned with the freedom to discuss political issues?”.

If your Honour go to page 92, your Honours will see the first page of the article.  What is significant about the article is what does not appear there.  This is not an article which says that the Parliament ought to enact laws legalising shoplifting or changing the economic system of the country.  It is not an article which says people should elect members of Parliament who are likely to do that.  It is not even an article which says people should shoplift in order to persuade parliamentarians to change the law.  It is not like advocating the burning of a draft card which, perhaps, is an intermediate situation between the ‑ ‑ ‑

GUMMOW J:   Does that harks back to your graduate days, Mr Solicitor?

MR BENNETT:   Your Honour, I think mine were even before that.  The most important line on page 92 is that after the introductory paragraphs, which are all that can really be suggested to possibly be political in the article, lines 5 to 30, these words appear:

Although we have been taught that ‘thou shalt not steal’, an order historically backed by threats of divine retribution, this should not for one minute stop us from taking the redistribution of wealth into our own hands.  Believe me, no‑one is likely to do it for us.

The authors appear to accept the political impossibility of the law being changed, or of society being changed in the relevant way.  All they seek is that one should achieve a particular level of redistribution by those with less resources stealing from those with more resources.  That cannot, on any view of it, before one gets to any of the qualifications or exceptions about crime, come within the sort of discussion about political matters which was referred to by Justices Mason, Toohey and Gaudron.   That is the first matter.

The second matter is that even if one were to say that those first six paragraphs on page 92 were in some way a political speech of the relevant kind, what appears in the balance of the article goes far further than is necessary for making the point.  If the point being made is one ought to engage in this type of conduct because that is a desirable redistribution of wealth, that is something which one may be able to say in a political context if my first proposition is wrong.  But it does not follow that one can then go on and at much greater length give very great detail, including the hortatory detail, about how to carry it out.  That is not something which is reasonable and adapted to the initial purpose.

GUMMOW J:   How did this matter get into the court in the first place?  There was some complaint was there by some association?

MR BENNETT:   Yes, there was judicial review from the decision of the appellate body from something called the Classification Board.

GUMMOW J:   What activated the Classification Board in the first place?

MR BENNETT:   There was an appeal by the authors from the decision to refuse classification by the Chief Censor.

GUMMOW J:   I know, but what activated this gentleman called the Chief Censor?

MR BENNETT:   There was an application by the Retail Traders Association.

GUMMOW J:   What, they then dropped out of the picture, did they?

MR BENNETT:   I think they appeared at the appeal tribunal, your Honour.  I do not think they took any part in the forensic - well, they were not respondent to the application.

Then one gets to the scope of the exception, and there are two aspects to that, the constitutional aspect, and the construction aspect.  The constitutional aspect is that what my learned friend submits is that if your Honours look at the words which are conveniently set out on page 69, at line 12, “promote, incite or instruct in matters of crime or violence”, his submission is that unless there is an element of actual likelihood – there is an actual tendency, an actual likelihood of crime resulting – then it is beyond constitutional power to have any legislation or combination of legislation which has the effect of prohibiting that publication.

That, with respect, goes far, far further than has ever been suggested in relation to the constitutional limitation.  One immediately asks what is the basis for the distinction.  It would have some surprising consequences.  It would mean, for example, that an article on how to make letter bombs, and advocating the purchase of readily available materials and their construction, and their dissemination, would be prohibited, but an article describing how to make atom bombs and advocating their manufacture and use would not be illegal on the basis that a citizen probably would not be able to get any uranium.

In my respectful submission, the advocacy of crime, the inciting, instructing or promoting of matters of crime ‑ ‑ ‑

GUMMOW J:   Does this federal legislation in any way – I am talking about the 1995 Act – control what gets on the Internet?

MR BENNETT:   Your Honour, that is a very difficult question.  There is legislation which attempts to deal with the Internet.  There are questions about enforceability and obvious questions about jurisdictional aspects where ‑ ‑ ‑

GUMMOW J:   But at the moment, as it stands, it does not.

MR BENNETT:   It may, your Honour, it may, depending on ‑ ‑ ‑

GUMMOW J:     …..the question.

MR BENNETT:   It may, depending on how it is published, and who it is published by; it may, depending upon a number of matters, and where it is published.  “Publication includes any written or pictorial material”, and no doubt experts could argue at great length whether one can classify computer

publications on the Internet as falling within those words.  I would submit they probably would, but that is a matter for another day.

Education often does not have a direct result.  When one comes to the meaning of the word “instruct”, which is the construction aspect - everyone knows a teacher may instruct the class without the class taking in anything that is said.  The word “instruct” simply does not carry with it any implication that there is actually an effect on the mind of the person sought to be instructed.

GUMMOW J:   Sorry, could you say that again?

MR BENNETT:   Yes.  The word “instruct” is concerned with what is done by the instructor.  It is not concerned with the effect on the person instructed, and one can instruct, although the person instructed does not understand, does not take it in, or does not agree with it and does not intend to carry it out.  There is no element in the word “instruct” which requires what my learned friend says.

The only way he can succeed is not as a matter of construction of the word, but by finding that the constitutional guarantee is so wide that it is a breach of it not to have the exclusion to which he refers.  We would submit it simply, on any view, cannot go that far.

So, it is important to realise, of course, one does not get to the argument about the exception if your Honours accept my first point. If we are not in the area in this case, the area of free speech with which this Court has extended the protection to, then we do not get to the questions of exceptions about matters of crime and the like. If we do get to the exception, we would submit that on its true construction the word has the meaning given to it by the Court, and that is a meaning completely permissible within the Constitution.

Finally, your Honours, we would submit the case is not a convenient vehicle for this reason, that it is such a clear case of something falling within the various policy considerations that it is not a borderline case on which there could be a useful test case to this Court in which all the principles associated with freedom of speech could be examined.  May it please the Court.

GLEESON CJ:   Yes, Mr Pagone.

MR PAGONE:   Your Honour, my learned friend said that it was a matter of application of well‑established principle.  May I take the Court to what Justice Heerey said at pages 87 of the application book, where his Honour, at about line 19, after citing the passage from the joint judgment in Theophanous, said:

I would, with respect, doubt that this statement is to be taken in the literal sense for which the appellants contend, that is to say divorced from the democratic system of law making and administration which is the touchstone of the Constitutional freedom.

At the bottom then of page 90, the top of page 91 his Honour says at the very bottom of the page:

It follows that in my opinion United States decisions like Brandenburg v Ohio…..and the line of cases which follow it are not applicable to the implied freedom under the Australian Constitution.  There is no constitutional protection for speech which is “mere advocacy” or abstract teaching of the necessity or propriety of criminal or violent conduct.  The reason is simple.  Such conduct is not part of the system of representative and responsible government or of the political and democratic process.

Your Honours, we say first of all his Honour misapplied the statement of principle, and secondly, that in doing so the content of the constitutional freedom was construed in a way that the previous authorities had said was not permissible.  That is to say, limiting it to a much narrower content than the court had said.

In that regard, your Honours, may we refer the Court to what his Honour Justice Toohey said in Kruger’s Case (1997) 190 CLR 1, and the relevant passages are at pages 90 to 91 where, after Theophanous, after Lange, his Honour sets out the passage from Barendt, and his Honour says at the very bottom of page 90:

Nothing said in Lange diminishes the scope of the implied freedom as I have identified it; rather the decision reinforces it.  Certainly Lange endorsed what had been said in earlier decisions, namely, that the freedom of communication which the Constitution protects is not absolute.

And there are various passages.

GUMMOW J:   What about Levy?  Is that not nearer this case?

MR PAGONE:   On the fact, in some respects, it is a bit closer to this case, although in so far as the evidence of the question about whether speech could be constituted by the conduct sought to be prohibited by the

regulation.  In that case, as we say here, the content, the permissible content, the Commonwealth Executive, or legislative action, needs to be directed to harm.  The harm cannot be mere advocacy.  The harm has to be something with a tendency.  That, your Honour, is the point that Justice Sunberg indirectly accepted, but then did not apply that concept to the construction of the Act, or to an analysis of the article.

In passages from the judgment of Justice Heerey one sees references to other cases where tendency is critical, not enough for there to be mere advocacy.  There has to be the additional element as well, otherwise, the legislative prohibition or the Executive action has gone too far.  It has gone beyond what is reasonably appropriate and adapted because it trespasses beyond the harm.  Mere advocacy without the tendency cannot produce the harm.

My learned friend says this is not an article which says this; not an article which says that.  We would submit it is such an article; and it is such an article that says all of those difficult and confronting things in a democratic society because of the way it does it.  The kind of scholarly article that my learned friend might write today about seeking to advocate the change to democratic societies or a change to this society, would be very different from the article written by students designed to focus upon critical questions about our democratic society.  So, contrary to my learned friend’s submissions, we say it does.

GLEESON CJ:   We will adjourn for a short time to consider the course we will take in this matter.

AT 11.52 AM SHORT ADJOURNMENT

UPON RESUMING AT 12.01 PM:

GLEESON CJ:   The Court is of the view that having regard to the way in which the issues were presented for decision in the litigation in the Federal Court, there is insufficient reason to doubt the correctness of the actual decision of the Full Court of the Federal Court to warrant a grant of special leave and the application is refused.

Mr Pagone, can you resist the application for costs?

MR PAGONE:   Your Honour, we do make an application.  We seek to do so, your Honour.   Our reasons are set out at page 123 of the application book.  His Honour Justice Merkel, at first instance, for a variety of reasons which we have summarised there, did not award costs against us.  The respondent in the Full Federal Court did not seek costs against us.  We say that the reasons that are outlined there are as operative now as they were at first instance.  In their submissions they deal with the matter at page 137 and page 138 of the application book.  They do not seek to assert in any way that the reasons are no longer operative.

Indeed, in proceedings before this Court, the respondent has elected to appear with the Solicitor-General.  We would say that adds to the weight that the matter is significant and important.

GLEESON CJ:   What do you say, Mr Solicitor?

MR BENNETT:   Your Honour, in my respectful submission, first the fact that we did not seek costs in the Full Court is irrelevant.  It was simply an act of generosity which it was considered appropriate to take at that stage.  In my respectful submission, this Court does not refuse to make an order for costs merely because there may be important issues involved or some justification for pursuing the matter to this stage.

I am not sure of the significance of my friend’s last submission, but I can assure him that it reduces rather than increases the amount of the cost involved.  Your Honours, we press an application for costs.

GLEESON CJ:   In view of the course that has been taken in relation to costs in the courts below, we will make no order as to costs.

MR BENNETT:   If the Court pleases.

AT 12.04 PM THE MATTER WAS CONCLUDED